Murphy v an Bord Pleanála

JurisdictionIreland
JudgeMr. Justice Feeney
Judgment Date30 January 2009
Neutral Citation[2009] IEHC 38
Docket Number[No. 396 J.R./2001]
CourtHigh Court
Date30 January 2009

[2009] IEHC 38

THE HIGH COURT

[No. 396 J.R./2001]
Murphy v Bord Pleanála

BETWEEN

DESMOND MURPHY
APPLICANT

AND

AN BORD PLEANÁLA
RESPONDENT
MARTIN HAYES, THE COUNTY COUNCIL OF THE COUNTY OF CORK
NOTICE PARTIES

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(3)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)(b)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(11)

CONVERY v DUBLIN CO COUNCIL 1996 3 IR 153

KEANE v BORD PLEANALA 1998 2 ILRM 241

CABLELINK LTD v BORD PLEANALA 1999 1 IR 596

FINGAL CO COUNCIL v WILLIAM P. KEELING & SONS 2005 2 IR 108

FRESCATI ESTATES v WALKER 1975 IR 177

PLANNING AND ENVIRONMENTAL LAW

Permission

Development - Exempted development - Unauthorised development - Planning permission granted for development of premises - Claim that proposed development to be carried out on top of illegal structure - Whether Bord Pleanála erred in law in granting planning permission - Whether development for which permission sought incorporated extant unauthorised use - Whether Bord Pleanála prohibited from granting planning permission in circumstances - Retention - Whether decision irrational - Discretion of planning authority - Estoppel - Whether Bord Pleanála obliged to determine whether or not disputed works unauthorised or exempted development - Whether Bord Pleanála fail to have regard to matters which they ought to have taken into account - Convery v Dublin County Council [1996] 3 IR 153, Keane v Bord Pleanála [1998] 2 ILRM 241, Cablelink Ltd v Bord Pleanála [1999] 1 IR 596 and Fingal Co Co v Keeling & Sons Ltd [2005] IESC 55, [2005] 2 IR 108 considered; Frescati Estates v Walker [1975] IR 177 distinguished - Local Government (Planning and Development) Act 1963 (No 28), s 26(11) - Local Government (Planning and Development) Act 1976 (No 20), s 27 - Local Government (Planning and Development) Act 1992 (No 14), s 19 - Relief refused (2001/396 JR - Feeney J - 30/1/2009) [2009] IEHC 38

Murphy v An Bord Pleanala

Facts: The applicant sought an order of certiorari quashing the decision of the respondent to grant permission. The first named notice party had made three applications for planning permission which the applicant sought to appeal. The first notice party claimed that earlier works resulted in the premises at issue being an exempted development and not an unauthorised development. The first named respondent An Bord Pleanala had granted permission and the applicant alleged that the respondent had erred in law in failing to have regard to matters it ought to have taken into account and that the decision of the respondent was unreasonable. The issue arose inter alia as to whether it could grant permission for a development incorporating an extant development which was alleged to amount to an unauthorised development.

Held by Feeney J. that the Court was satisfied that An Bord Pleanala was not prohibited from granting planning permission where the development incorporated an extant development which it alleged amounted to an unauthorised use and or development. It could not be said that An Bord Pleanala was obliged to determine whether or not the disputed works were an unauthorised development or exempted development. The applicant had failed to establish that An Bord Pleanala had acted in an irrational manner. There was no requirement for An Bord Pleanala to refer to a particular matter in its decision. An Bord Pleanala had not failed to consider any matter that it ought to have. The applicant had failed to establish any grounds for the relief sought and the application would be dismissed.

Reporter: E.F.

Mr. Justice Feeney
1

2 1.1 In these proceedings, the applicant seeks an order of certiorari quashing the decision of the respondent dated 18th April, 2001. It was a decision made pursuant to the Local Government (Planning and Development) Acts 1963 to 1999, to grant permission to the first named notice party under planning reference number W/00/1996. The appeal before An Bord Pleanála related to a development of a premises comprising partial change of use of house and conversion and first floor extension of domestic store to ground and first floor café at Cloan, Allihies, Beara, County Cork in accordance with plans of particulars lodged with Cork County Council. The premises is part of a group of buildings on the Main Street and the applicant in this case who was the appellant in the appeal before An Bord Pleanála is a neighbour.

2

3 1.2 The first named notice party, Martin Hayes, first made an application for planning permission in respect of the said premises in October of 1998, and that application was withdrawn in December of 1998. It was withdrawn at a time when Circuit Court proceedings had been brought by Desmond Murphy against Martin and Jackie Hayes. It was stated in writing, on behalf of Martin and Jackie Hayes, that they would be making a new application to the planning authority for "retention of the revised elevations and road frontage, so far as permission is required for the change in the road's frontage". A second application for permission for retention of extension to store and conversion of same to residential accommodation and retention of paving to road frontage was made by application dated the 21st January, 1999. By order dated the 30th July, 1999, Cork County Council refused to grant permission for the development for three stated reasons set out in the schedule attached to the order.

3

4 1.3 A third application for planning permission was made by Martin Hayes to Cork County Council for partial change of use of dwelling and conversion and first floor extension of domestic store to ground and first floor café in respect of the said premises by application dated the 30th March, 2000. That application was successful and Cork County Council granted permission for the development by notice dated the 24th August, 2000 subject to seventeen conditions set out in the schedule. Desmond Murphy appealed that decision to An Bord Pleanála.

4

5 1.4 In support of his appeal against the decision to grant planning permission the applicant submitted, in part, that the original development was illegal and the proposed development incorporated that development as the ground floor support for the second storey. The allegation that the original development was illegal was the subject matter of ongoing Circuit Court proceedings brought by Desmond Murphy against Martin and Jackie Hayes in Cork Circuit Court proceedings, Record Number E334/1998. Desmond Murphy in his appeal to An Bord Pleanála relied, in part, on a claim that the proposed development physically incorporated a ground floor extension which, it was claimed, was an illegal development. Martin Hayes contended that the earlier works incorporating the store into his premises was an exempted development rather than an unauthorised development as its area was below the threshold required in respect of which planning permission would be required. An Bord Pleanála concluded that the appeal could be dealt with without an oral hearing and duly informed all parties to the appeal of that fact by letters dated the 6th December, 2000.

5

6 1.5 The planning inspector of An Bord Pleanála inspected the site on the 30th January, 2001 and prepared a nineteen page report dated the 6th April, 2001. The inspector recommended that permission be refused. The grounds were that the proposed development would be contrary to the proper planning and development of the area and that the residential amenity of the adjoining properties would be injured by the proposed development of a commercial café by virtue of the additional noise, activity, disturbance and odours generated by such use and would therefore be contrary to proper planning and development. The inspector noted that there was a dispute in relation to earlier works carried out consisting of a single storey extension to the dwelling house, and that the appellants, including the applicant herein, had referred to "the unauthorised nature of these works". The inspector went on to point out that the party applying for permission appeared to be arguing that those works constituted an exempted development notwithstanding that previous applications for permission had been lodged and determined by the planning authority. The inspector pointed out that the retention of the earlier works to the existing single storey, consisting of an extension at the front and side of the dwelling house, were not included within the description of the overall development under consideration. That development referred to a first floor extension. The recommendation to refuse planning permission was based upon the inspector's considered opinion in relation to the proper planning and development of the area and no concluded view was expressed in relation to the dispute concerning the earlier works.

6

7 1.6 By the date of the inspector's report the Circuit Court proceedings brought by Desmond Murphy against Martin and Jackie Hayes pursuant to s. 27 of the Local Government (Planning and Development) Act 1976, as amended by s. 19 of the Local Government (Planning and Development) Act 1992, had been withdrawn by Desmond Murphy. On the 4th October, 2000 the proceedings were struck out with no order as to costs, the Court having been informed that the matter had been settled between the parties.

7

8 1.7 Notwithstanding the recommendation of the inspector, An Bord Pleanála determined to grant permission for the development and did so by decision dated the 18th April, 2001.

8

9 2.1 The applicant sought leave to apply for judicial review before this Court and on the 2nd April,...

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1 cases
  • Hayes v an Bord Pleanála
    • Ireland
    • High Court
    • 17 May 2018
    ...out takes into account not only the development's future impact but also its past impact. The decision in Murphy v. An Bord Pleanala [2009] IEHC 38 57 An issue debated between the parties was whether the application for permission in the present case involved an element of retention and/or ......

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